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Diaz v. Hurley

United States District Court, E.D. California

July 3, 2019

MIGUEL ENRIGUE DIAZ, Plaintiff,
v.
ASSOCIATE WARDEN HURLEY, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel. Judgment was entered and this action was closed on March 27, 2018. On May 2, 2019, plaintiff renewed his motion to vacate the judgment, and filed a motion to return jurisdiction to the district court. As set forth below, the undersigned denies the motion to return jurisdiction as moot, and recommends that plaintiff's motion to vacate be denied because it was untimely-filed.

         I. Background

         On July 3, 2017, defendants filed a motion to revoke plaintiff's in forma pauperis status, and to dismiss the complaint. After multiple extensions of time, plaintiff filed an opposition on October 10, 2017. (ECF No. 33.) Defendants filed a reply. (ECF No. 34.)

         On October 30, 2017, the undersigned found that plaintiff failed to plausibly demonstrate he faced imminent danger of serious physical injury at the time he filed his complaint, and recommended that (a) defendants' motions be granted, including a recommendation that defendants be granted qualified immunity in connection with plaintiff's heat-cooling claims; (b) plaintiff's in forma pauperis status be revoked; (c) the complaint be dismissed; (d) plaintiff be required to pay the filing fee; and (e) plaintiff be allowed to file an amended complaint thirty days after he paid the filing fee. (ECF No. 35.) Because plaintiff's objections crossed in the mail with the district court's November 21, 2017 order adopting the findings and recommendations (ECF Nos. 36, 37), the district court vacated the order and granted plaintiff an extension of time to file objections.

         On January 24, 2018, over plaintiff's objections, the previously-assigned district judge adopted the findings and recommendations in full, revoked plaintiff's in forma pauperis status, dismissed the complaint, and ordered plaintiff to pay the filing fee within twenty-one days, and granted plaintiff leave to file an amended complaint thirty days after the filing fee was paid. (ECF No. 43.)

         On March 1, 2018, the undersigned recommended that this action be dismissed based on plaintiff's failure to pay the filing fee. (ECF No. 46.) On March 27, 2018, the findings and recommendations were adopted in full, and this action was dismissed without prejudice.

         Plaintiff filed an appeal. While the appeal was pending, plaintiff filed a motion for relief from judgment, which was denied in light of plaintiff's pending appeal. (ECF Nos. 52, 54.) On September 18, 2018, the appeal was dismissed for failure to prosecute.

         On May 28, 2019, plaintiff filed motions styled “Motion to Vacate Denial of IFP. . .” and “Motion to Return Jurisdiction to District Court, both signed on May 15, 2019.[1] (ECF Nos. 56, 57.) Defendants filed oppositions. (ECF Nos. 58, 59.) Plaintiff did not file a timely reply. L.R. 230(1).

         II. Motion to Return Jurisdiction

         Defendants are correct that jurisdiction returned to the district court following the September 10, 2018 order from the Ninth Circuit (ECF No. 55). Pursuant to such order, jurisdiction returned to the district court on October 1, 2018. Because this court now has jurisdiction, plaintiff's motion to return jurisdiction is moot, and is denied.

         III. Motion to Vacate Judgment

         A. The Parties' Positions

         In his motion, plaintiff seeks an order vacating the denial of his in forma pauperis status based on alleged “misconduct of defendants and defense counsel, ” and claims there is no evidence “unless it is fabricated.” (ECF No. 56 at 1.) Plaintiff claims that the court should order defendants to provide heat plan logs from May 2015, to the present, to ensure “no fabrication.” Plaintiff claims that no special master or class attorney have investigated or spoke with plaintiff or any of the inmates who file appeals in an attempt to document abuses. Plaintiff asks the court to investigate, ...


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